# Extra Energy, Incorporated v. DOWCP

> Court of Appeals for the Fourth Circuit · June 23, 2026

URL: https://www.frixlaw.com/law-library/cases/11347419

## Case

- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** June 23, 2026
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11347419

## Opinion text

USCA4 Appeal: 24-1618 Doc: 51 Filed: 06/23/2026 Pg: 1 of 11

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 24-1618

EXTRA ENERGY, INCORPORATED,

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR; THOMAS R. CULBERTSON,

Respondents.

On Petition for Review of an Order of the Benefits Review Board. (23-0471 BLA)

Argued: December 11, 2025 Decided: June 23, 2026

Before NIEMEYER, WYNN, and BENJAMIN, Circuit Judges.

Petition for review denied by unpublished opinion. Judge Benjamin wrote the opinion, in
which Judge Niemeyer and Judge Wynn joined.

ARGUED: Mark Joseph Grigoraci, ROBINSON & MCELWEE, PLLC, Charleston, West
Virginia, for Petitioner. Samuel Brown Petsonk, PETSONK PLLC, Oak Hill, West
Virginia; Michael P. Doyle, Philadelphia, Pennsylvania, for Respondents. ON BRIEF:
Seema Nanda, Solicitor of Labor, Barry H. Joyner, Associate Solicitor, Jennifer Feldman
Jones, Deputy Associate Solicitor, Olgamaris Fernandez, Office of the Solicitor, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal Respondent. Bren
J. Pomponio, MOUNTAIN STATE JUSTICE, Charleston, West Virginia, for Respondent
Thomas R. Culbertson.
USCA4 Appeal: 24-1618 Doc: 51 Filed: 06/23/2026 Pg: 2 of 11

Unpublished opinions are not binding precedent in this circuit.

2
USCA4 Appeal: 24-1618 Doc: 51 Filed: 06/23/2026 Pg: 3 of 11

DEANDREA GIST BENJAMIN, Circuit Judge:

Thomas Culbertson applied and received benefits for legal pneumoconiosis under

the Black Lung Benefits Act, 30 U.S.C. §§ 901–945 (BLBA). This grant was confirmed

by the United States Department of Labor Office of Administrative Law Judges (“ALJ”)

and affirmed by Benefits Review Board (the “Board”). Extra Energy, Incorporated—the

employer responsible for the benefits payments—now appeals these decisions.

On appeal, Extra Energy argues for the first time that the department’s regulation

20 C.F.R. § 718.305(b)(2) exceeds the department’s statutory authority and is not the best

reading of the statute. In administrative cases, like ones under the BLBA, a party must

raise an argument first to the ALJ and the Board to preserve them for judicial review. This

is known as the exhaustion requirement. There are limited exceptions to this rule, including

where raising the issue would have been futile or when an intervening change in law makes

the argument newly available. Extra Energy argues that its challenge to the regulation falls

within these exceptions because its argument only became viable after the Supreme Court’s

decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). But that decision

did not newly enable Extra Energy’s argument; it could have challenged the validity of the

regulation before the ALJ and the Board even before Loper Bright. Because Extra Energy

failed to do so, its argument is forfeited, and we deny its petition for review.

I.

Benefits under the BLBA are provided to coal mine workers (or their dependents)

who are totally disabled within the meaning of the BLBA. Pneumoconiosis, also called

3
USCA4 Appeal: 24-1618 Doc: 51 Filed: 06/23/2026 Pg: 4 of 11

black lung disease or coal workers’ pneumoconiosis, is a chronic dust disease of the lungs,

including respiratory and pulmonary impairments, arising out of coal mine employment.

30 U.S.C. § 902(b); 20 C.F.R. § 718.201. A claimant may invoke the rebuttable

presumption of total disability due to pneumoconiosis—referred to as the Section 411(c)(4)

presumption—by establishing that they worked for 15 or more years in underground coal

mines. 30 U.S.C. § 921(c)(4). Surface mine experience counts towards this presumption

if there is a finding that those experiences “were substantially similar to conditions in an

underground mine.” Id. (emphasis added). The Department of Labor explains that

conditions are substantially similar “if the claimant demonstrates that the miner was

regularly exposed to coal-mine dust while working there.” 20 C.F.R. § 718.305(b)(2). The

Section 411(c)(4) presumption can be rebutted by the responsible operator establishing that

the claimant did not have pneumoconiosis or proving that no part of the claimant’s

respiratory or pulmonary total disability was caused by his pneumoconiosis. 30 U.S.C. §

921(c)(4); 20 C.F.R. § 718.305(d). The coal mine operator that the claimant last worked

for at least a year at will be designated as the responsible operator and is liable for the

claimant’s benefit payments. 20 C.F.R. §§ 725.493–495.

Thomas Culbertson worked in the coal industry for more than three decades,

primarily as a heavy equipment operator for both underground and surface mines.

Culbertson filed for and received benefits under the BLBA. The Department of

Labor’s Office of Workers’ Compensation Programs determined that he had

pneumoconiosis which qualified him for this initial award of benefits. Extra Energy was

designated as the responsible operator. The initial award decision was affirmed by the

4
USCA4 Appeal: 24-1618 Doc: 51 Filed: 06/23/2026 Pg: 5 of 11

ALJ. In confirming his grant of benefits, the ALJ identified his employment that counted

towards the Section 411(c)(4) presumption: Culbertson worked for five years in an

underground mine and 18 years in surface mines operated by Extra Energy or Summit

Services, Incorporated, another coal mine operator. The ALJ further determined that these

aboveground mines were “substantially similar to underground coal mine employment.”

J.A. 493. 1 This conclusion qualified Culbertson for a Section 411(c)(4) presumption of

legal pneumoconiosis, which the ALJ concluded Extra Energy failed to rebut.

Extra Energy appealed the ALJ’s decision to the Board. The Board issued a final

decision and order affirming the ALJ’s award of benefits to Culbertson. 2 Extra Energy

timely appealed the Board’s decision. We have jurisdiction over Extra Energy's petition

for review under 33 U.S.C. § 921(c), as incorporated by 30 U.S.C. § 932(a).

1
Citations to “J.A.” refer to the joint appendix filed by the parties. The J.A. contains
the record on appeal from the district court. Page numbers refer to the “J.A. #” pagination.
2
While the ALJ credits Culbertson with a total of 23 years of qualifying coal mine
employment, the Board affirms only the 15 years of qualifying coal mine employment
necessary for the presumption. Before the Board and on appeal, Extra Energy contested
Culbertson’s precise employment dates stating that Culbertson worked for another mine
operator, Prime Processing, Incorporated, for three years between 2004 and 2007. As the
Board only affirmed the ALJ for qualifying employment from 1994 to 2004, we need not
resolve any discrepancies. Extra Energy does not dispute that Culbertson worked for the
company from 2007 to when he left the industry in 2012, so whether Extra Energy is the
responsible operator is not in dispute. See 20 C.F.R. §§ 725.493-495. For his part,
Culbertson testified that all three companies—Extra Energy, Summit, and Prime—have
the same owners.

5
USCA4 Appeal: 24-1618 Doc: 51 Filed: 06/23/2026 Pg: 6 of 11

II.

We review the legal conclusions of the ALJ and the Board de novo. Sea “B” Mining

Co. v. Addison, 831 F.3d 244, 252 (4th Cir. 2016). For the ALJ’s factual findings, we

review for substantial evidence considering “whether all of the relevant evidence has been

analyzed and whether the ALJ has sufficiently explained his rationale in crediting certain

evidence.” Hobet Mining, LLC v. Epling, 783 F.3d 498, 504 (4th Cir. 2015) (quoting

Mingo Logan Coal Co. v. Owens, 724 F.3d 550, 557 (4th Cir. 2013)).

III.

Extra Energy argues that 20 C.F.R. § 718.305(b)(2) is inconsistent with statute and

exceeds the department’s authority. It specifically takes issue with the “substantially

similar” standard at (b)(2) arguing that the statute requires an objective comparison

between aboveground and underground mines, not just a showing of regular coal mine dust

exposure. See Appellant’s Br. (ECF No. 16) at 25–28 3 (hereinafter, “Opening Br”). Extra

Energy did not raise this issue before the ALJ or the Board, so we must first consider

whether Extra Energy can bring this challenge for the first time on appeal. We conclude

that it cannot.

Generally, a party must raise all issues before the ALJ and the Board to preserve

them on appeal. See Edd Potter Coal Co., Inc. v. Dir., Office of Workers’ Comp. Programs,

3
Page numbers for citations to ECF documents utilize the page numbers in the red
header on each document.

6
USCA4 Appeal: 24-1618 Doc: 51 Filed: 06/23/2026 Pg: 7 of 11

U.S. Dep’t of Lab., 39 F.4th 202, 207 (4th Cir. 2022) (“[T]he Department of Labor’s

regulations require issue exhaustion both before the ALJ and before the Board.” (emphasis

added)). “Forfeiture results when a party fails to raise an issue at the appropriate time.”

Id. at 206. However, judges have “ ‘leeway to create exceptions’ ” or “incorporate standard

administrative-law exceptions.” Id. at 211 (internal quotation marks omitted in second

quote) (quoting Ross v. Blake, 578 U.S. 632, 642 n.2 (2016)).

This court has recognized the futility and intervening law exceptions to forfeiture.

Id. at 211–12. The futility exception applies where “the ALJ and the Board are ‘powerless

to grant the relief requested.’ ” Id. at 211 (quoting Carr v. Saul, 593 U.S. 83, 93 (2021)).

The intervening law exception applies when an issue “ ‘was not previously available,’

meaning that ‘there was strong precedent’ that makes the failure to raise [the argument]

‘not unreasonable.’ ” Id. (quoting Holland v. Big River Minerals Corp., 181 F.3d 597,

605–06 (4th Cir. 1999)). The intervening law exception is for the protection of litigants

“who, despite due diligence, fail to prophesy a reversal of established adverse precedent.”

United States v. Chittenden, 896 F.3d 633, 639 (4th Cir. 2018) (quoting GenCorp, Inc. v.

Olin Corp., 477 F.3d 368, 374 (6th Cir. 2007)).

It is undisputed that Extra Energy did not challenge the regulation’s validity before

the ALJ or the Board. But Extra Energy contends that our decision in West Virginia CWP

Fund v. Bender, 782 F.3d 129 (4th Cir. 2015), foreclosed any challenge to the regulation

before Loper Bright, which was issued after Board affirmance. As such, Extra Energy

argues that the futility or intervening law exceptions should apply. However, Bender did

not foreclose Extra Energy’s challenge to the regulation. As such, Extra Energy could have

7
USCA4 Appeal: 24-1618 Doc: 51 Filed: 06/23/2026 Pg: 8 of 11

brought its challenge before the ALJ and the Board and we hold that neither exception

applies.

A.

Extra Energy contends that it could not bring its § 718.305(b)(2) challenge in front

of the ALJ or the Board because Bender largely affirmed the validity of 20 C.F.R.

§ 718.305. Appellant’s Br. (ECF No. 27) at 8–9 (hereinafter “Reply Br”). But Bender

analyzed a different department regulation and made no reference to § 718.305(b)(2).

In Bender, the court analyzed 20 C.F.R. § 718.305(d)(1) and considered “whether

[the] application of the rule-out standard to coal mine operators in a regulation would be a

reasonable exercise of agency authority in filling such a gap in the statute.” Bender, 782

F.3d at 140. The court applied the principles of deference articulated in Chevron, U.S.A.,

Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837, 842–43 (1984), and

determined that the department properly filled a gap in the statute and that “the rule-out

standard set forth in Section 718.305(d) is a reasonable exercise of the agency’s authority

under Chevron.” Bender, 782 F.3d at 139–40, 143.

But notably, Bender includes no mention or reference to subsection (b)(2) or the

“substantially similar” standard. And while § 718.305(d)(1) may be related to the Section

411(c)(4) presumption, it does not discuss the “substantially similar” standard critical to

Extra Energy’s challenge. In fact, these are two different department regulations with two

entirely separate functions. Section 718.305(d)(1) provides a standard for operators to

rebut a presumption. Specifically, the “rule out” standard asks the party opposing

entitlement to rebut the presumption by establishing that the miner did not have either legal

8
USCA4 Appeal: 24-1618 Doc: 51 Filed: 06/23/2026 Pg: 9 of 11

or clinical pneumoconiosis and that no part of the miner’s disability was caused by

pneumoconiosis. See § 718.305(d)(1). In other words, an operator must “ ‘rule out any

causal relationship between the miner’s disability and his coal mine employment by a

preponderance of the evidence’ to rebut the presumption.” Bender, 782 F.3d at 135

(emphasis added) (quoting Stiltner v. Island Creek Coal Co., 86 F.3d 337, 339 (4th Cir.

1996)). In contrast, § 718.305(b)(2) identifies what aboveground work qualifies for the

Section 411(c)(4) presumption by defining “substantially similar” as regular coal mine dust

exposure.

As such, Bender’s Chevron deference was, at best, predictive but not conclusory as

to what the ALJ, the Board, or this court would have decided about the specific validity of

§ 718.305(b)(2) as different regulations may demand different responses. Edd Potter, 39

F.4th at 211 (rejecting the futility exception where it was possible to receive the requested

constitutional relief). Thus, Extra Energy’s argument that a § 718.305(b)(2) challenge was

futile fails.

B.

Extra Energy also argues that Loper Bright created an avenue for judicial review

that did not previously exist as it requires federal courts to determine themselves the best

reading of the statute, not defer to an agency’s interpretation. Reply Br. at 9. Yet, even

before Loper Bright, parties had the ability to challenge the validity of a regulation if they

believed an agency’s interpretation of a statute defied the clear and unambiguous statutory

language or relied on an impermissible construction of the statute. See Chevron, 467 U.S.

at 842–43, overruled by Loper Bright, 603 U.S. 369; see also Perez v. Cuccinelli, 949 F.3d

9
USCA4 Appeal: 24-1618 Doc: 51 Filed: 06/23/2026 Pg: 10 of 11

865, 876 (4th Cir. 2020) (before Loper Bright, rejecting an agency’s interpretation of a

statute as “impermissibly intrud[ing] into issues of state domestic relations law”).

Extra Energy contends that the department’s interpretation of § 718.305(b)(2)

exceeded its statutory authority because it only requires a miner to show regular coal mine

dust exposure rather than an objective comparison between aboveground and underground

mines. See Opening Br. at 25–28. This is exactly the type of impermissible construction

argument that was always available to Extra Energy. Chevron, 467 U.S. at 843. Extra

Energy’s use of Bender underlines that possibility. As described above, the coal mine

operators in Bender asserted a legal challenge to the validity of a similarly-situated

regulation before Loper Bright.

We find no reason to allow Extra Energy to “take a second bite of the apple” by

reviving the proceedings because “the first is not to their liking.” Edd Potter, 39 F.4th at

212. As the court has acknowledged, this would accomplish little beyond “disrupt[ing] the

ordinary processes of black-lung decision-making.” Id. Here, Loper Bright did not create

a new path to challenge the regulation that did not exist before. Therefore, Extra Energy’s

argument fails.

IV.

Because Culbertson has satisfied the rebuttable presumption that he is totally

disabled due to pneumoconiosis, Extra Energy may only rebut that presumption by

“establishing that (A) such miner does not, or did not, have pneumoconiosis, or that (B) his

10
USCA4 Appeal: 24-1618 Doc: 51 Filed: 06/23/2026 Pg: 11 of 11

respiratory or pulmonary impairment did not arise out of, or in connection with,

employment in a coal mine.” 30 U.S.C. § 921(c)(4).

Having reviewed the record in full, we hold that there was substantial evidence to

support the ALJ’s finding that Extra Energy could not rebut the presumption. Hobet

Mining, LLC, 783 F.3d at 504.

V.

As we hold that Extra Energy is unable to meet any exception to the exhaustion

requirement, it has forfeited its challenge to the validity of 20 C.F.R. § 718.305(b)(2). 4

Additionally, substantial evidence supports the ALJ’s finding that Extra Energy did not

properly rebut the presumption of total disability due to pneumoconiosis. Accordingly,

Extra Energy’s petition for review is

DENIED.

4
Because we hold that Extra Energy forfeited its challenge to the regulation, we
need not consider the merits of its challenge to § 718.305(b)(2).

11

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11347419. Public record. Not legal advice.